Detention of Illegal Foreigners Arbitrarily without Automatic Judicial Intervention and Appearance in Person before a Court is Unconstitutional.
August 2, 2017
Lawyers for Human Rights v Minister of Home Affairs and Others
Constitutional Court of South Africa
Mogoeng CJ, Nkabinde ADCJ, Cameron, Froneman, Jafta, Khampepe, Madlanga, Mhlantla, Zondo JJ, Mojapelo, Pretorius AJJ
Case CCT 38/16
June 29, 2017
Reported by Linda Awuor & Faith Wanjiku
Constitutional Law-Bill of rights- freedom and security of the person-illegal foreigners-deportation and detention of illegal foreigners-whether section 34(1) (b) and (d) of the Immigration Act on deportation and detention of illegal foreigners was inconsistent with section 12(1) of the Constitution on freedom and security of the person as it permitted detention of foreigners for a period of 30 days without automatic judicial intervention- The Constitution of the Republic of South Africa, 1996, section 12 (1)
Constitutional Law-Bill of rights-arrested, detained and accused persons-illegal foreigners-deportation and detention of illegal foreigners-whether section 34(1) (b) and (d) on deportation and detention of illegal foreigners of the Immigration Act was inconsistent with section 35(2) (d) of the Constitution on rights of accused and detained persons as it permitted an extension of the initial period of detention of 30 days without the detainee appearing in person before the Court that granted the extension-The Constitution of the Republic of South Africa, 1996, section 35 (2)(d)
Lawyers for Human Rights, the Applicant, acting on behalf of persons detained in terms of section 34(1) of the Immigration Act, No. 13 of 2002 (Immigration Act), brought an application against the Minister of Home Affairs (1st Respondent) alleging that the procedures and safeguards governing the detention of people suspected of being illegal foreigners under section 34(1) of the Immigration Act were unconstitutional and invalid. In its attack the Applicant singled out section 34(1) (b) and (d). It contended that, by omitting to provide for automatic judicial oversight before the expiry of 30 calendar days, section 34(1) (b) and (d) was inconsistent with sections 12(1), 35(1) (d) and 35(2)(d) of the Constitution of the Republic of South Africa, 1996 (Constitution). The challenge against section 34(1) (d) was based on the contention that it did not permit a detainee to appear in person before a court and impugn the lawfulness of his or her detention.
The Applicant sought from the High Court an order declaring that section 34(1)(b) and (d) of the Immigration Act was inconsistent with the Constitution and invalid. In order to cure the defect, the High Court opted for a different formulation of section 34(1) (b). In respect of section 34(1) (d), it engaged in some severance and reading-in. Before the Constitutional Court, the Applicant sought confirmation of the High Court’s order declaring the impugned provisions to be invalid.
i. Whether section 34(1) (b) and (d) of the Immigration Act on deportation and detention of illegal foreigners was inconsistent with section 12(1) of the Constitution on freedom and security of the person as it permitted detention of foreigners for a period of 30 days without automatic judicial intervention.
ii. Whether section 34(1) (b) and (d) on deportation and detention of illegal foreigners of the Immigration Act was inconsistent with section 35(2) (d) of the Constitution on rights of accused and detained persons as it permitted an extension of the initial period of detention of 30 days without the detainee appearing in person before the court that granted the extension.
iii. Whether sections 12 (1)and 35 (2) (d) of the Constitution on freedom and security of persons and on rights of arrested, detained and accused persons respectively also applied to illegal foreigners.
iv. Whether there would result in increased costs for the State from judicial reviews involving appearances in court hence the need for detention without appearing in person before the court that granted the extension as provided by section 34 (1) (b) and (d) of the Immigration Act on deportation and detention of illegal foreigners.
v. Whether severance and the reading-in as applied by the High Court to effectively amend section 34(1) (b) by replacing the invalid provision with the one drafted by the Court accorded with the principle of separation of powers.
Relevant Provisions of the Law
The Constitution of the Republic of South Africa, 1996
Section 12 (1) -Freedom and security of the person
(1) Everyone has the right to freedom and security of the person, which includes the right—
(a) not to be deprived of freedom arbitrarily or without just cause;
(b) not to be detained without trial;
(c) to be free from all forms of violence from either public or private sources;
(d) not to be tortured in any way; and
(e) not to be treated or punished in a cruel, inhuman or degrading way.
Section 35 (2) (d) -Arrested, detained and accused persons
(2) Everyone who is detained, including every sentenced prisoner, has the right—
(d) to challenge the lawfulness of the detention in person before a court and, if the detention is unlawful, to be released;
Immigration Act, No 13 of 2002
Section 34 (1) (b) & (d) -Deportation and detention of illegal foreigners
(1) Without need for a warrant, an immigration officer may arrest an illegal foreigner or cause him or her to be arrested, and shall irrespective of whether such foreigner is arrested, deport him or her or cause him or her to be deported and may,pending his or her deportation, detain him or her or cause him or her to be detained ina manner and at the place under the control or administration of the Department determined by the Director-General, provided that the foreigner concerned-
(b) may at any time request any officer attending to him or her that his or her detention for the purpose of deportation be confirmed by warrant of a Court, which, if not issued within 48 hours of such request shall cause the immediate release of such foreigner;
(d) may not be held in detention for longer than 30 calendar days without a warrant of a Court which on good and reasonable grounds may extend such detention for an adequate period not exceeding 90 calendar days,
- The substantive and the procedural aspects of the protection of freedom were different, served different purposes and had to be satisfied conjunctively. The substantive aspect ensured that a deprivation of liberty could not take place without satisfactory or adequate reasons for doing so. In the first place it could not have occurred arbitrarily; there had to in other words be a rational connection between the deprivation and some objectively determinable purpose. If such rational connection did not exist the substantive aspect of the protection of freedom had by that fact alone been denied. But even if such rational connection existed, it was by itself insufficient; the purpose, reason or cause for the deprivation had to be a just one.
- The procedural aspect of the right was implicit in section 12(1) (b) which guaranteed protection against detention without trial which was commonplace under the apartheid government. Then, arbitrary administrative detention was used to suppress dissent and serious violation of human rights occurred during the detention in respect of which judicial oversight was excluded. Implicit in the procedural aspect of the right was the role played by courts. Judicial control or oversight ensured that appropriate procedural safeguards were followed. That was why even where there was a derogation from the right during a state of emergency, section 37 of the Constitution required that a court had to review the detention as soon as reasonably possible but not later than 10 days from the date the person was detained.
- It was precisely against that most extreme form of the mischief of being detained without a trial that the Constitution sought to protect individuals by proclaiming conditions under which detentions could be conducted in the country. At the centre of those conditions was judicial control or oversight which had to be triggered as soon as reasonably possible from the first day of detention. It was apparent from the Bill of Rights in the Constitution and the jurisprudence of the Constitutional Court on the matter that automatic judicial control or review formed an integral part of safeguards guaranteed against detention without trial.
- Rights enshrined in the Bill of Rights had to be protected and could not be unjustifiably infringed. It was for the Legislature to ensure that, when necessary, guidance was provided as to when limitation of rights would be justifiable. It was therefore not ordinarily sufficient for the Legislature merely to say that discretionary powers that could be exercised in a manner that could limit rights should have been read in a manner consistent with the Constitution in the light of the constitutional obligations placed on such officials to respect the Constitution. Such an approach would often not promote the spirit, purport and objects of the Bill of Rights. Guidance would often be required to ensure that the Constitution took root in the daily practice of governance.
- Section 34(1) (b) of the Immigration Act did not require an automatic judicial review of a detention before 30 calendar days expired. It merely granted a detainee the right to request an immigration officer to cause the detention to be confirmed by a warrant of a court. Such warrant could be obtained only during the currency of the detention and at the instance of the immigration officer. The nature and scope of the information to be placed before the court was to be determined by the immigration officer. The provision did not allow the detainee to make any representations to the court, either orally or in writing or permit him or her to appear in person. It was highly unlikely that an immigration officer who wished that the detention be confirmed would place before the court information adverse to that objective. If information of that kind was omitted, the detainee would not know and would have had norecourse. The Court too would have been disadvantaged from making a proper decision by the absence of such information.
- Another flaw in section 34(1) (b) was that it allowed a detention to continue for at least 48 hours before the detainee could be released in circumstances where an immigration officer failed to ask for confirmation. That could have occurred even where the failure was occasioned by the absence of valid grounds.
- Section 34(1) (d) of the Immigration Act too did not permit the detainee to make any representations to the Court on whether the grounds advanced by an immigration officer met the standard of good and reasonable grounds. The Court considering the application was under no duty to offer the detainee a hearing. Contrary to section 35(2) (d) of the Constitution, section 34(1) (d) denied a detainee the right to challenge the lawfulness of his or her detention in person before a court.
- The Respondent in its supplementary submissions conceded that the impugned provisions did not afford a detainee the right to appear in person before a court and accepted that a detainee had to be entitled to appear in person and make oral representations to the Court. The Respondent undertook to ensure that if a detainee wished to appear in person he or she would be afforded the opportunity to do so. That undertaking, however, did not cure the defect in the provisions. The impugned provisions therefore limited the constitutional rights enshrined in sections 12(1) and 35(2) of the Constitution.
- A limitation of rights like physical freedom could not be justified on the basis of general facts and estimates to the effect that there would be an increase in costs. The mere increase in costs alone could not be justification for denying detainees the right to challenge the lawfulness of their detention. Section 34(1) required that the arrested foreigners be informed of the right to challenge the decision to deport them on appeal and ask that their detention be confirmed by warrant of a court. If each foreigner decided to exercise those rights, an increase in costs would have been unavoidable. The Respondent had to have budgeted for those costs which were necessitated by the implementation of the Immigration Act.
- A Court could introduce words into a legislative provision if such an order were appropriate. In deciding so, there were two primary considerations;
a) the need to afford appropriate relief to successful litigants
b) the need to respect the separation of powers and in particular the role of the Legislature as the institution constitutionally entrusted with the task of enacting legislation.
Having decided that severance and the reading-in were not appropriate, it was not open to the High Court to effectively amend section 34(1) (b) by replacing the invalid provision with the one drafted by the Court. That did not accord with the principle of separation of powers as it was the domain of Parliament to amend legislation and not the courts.
- It would have been inappropriate for the Court to seek to remedy the inconsistency in the legislation under review. The task of determining what guidance should have been given to the decision-makers, and in particular, the circumstances in which a permit could justifiably have been refused were primarily a task for the Legislature and should have been undertaken by it. There was a range of possibilities that the Legislature could have adopted to cure the unconstitutionality. Where a defect was cured by a reading-in, Parliament retained the power to amend the provision. The reading-in would not address the absence of guidelines and could therefore not be employed in the case. A suspension of the declaration of invalidity appeared to be appropriate as it would enable Parliament to correct the defects. The suspension had to be accompanied by conditions which would protect the detainees’ rights in the interim.
Application allowed; Respondents would bear the costs.
a) The order issued by the High Court of South Africa, Gauteng Division, Pretoria was set aside.
b) Section 34(1) (b) and (d) of the Immigration Act No.13 of 2002 was declared to be inconsistent with sections 12(1) and 35(2) (d) of the Constitution and therefore invalid.
c) The declaration of invalidity was suspended for 24 months from the date of the order to enable Parliament to correct the defect.
d) Pending legislation to be enacted within 24 months or upon the expiry of the period, any illegal foreigner detained under section 34(1) of the Immigration Act would be brought before a court in person within 48 hours from the time of arrest or not later than the first court day after the expiry of the 48 hours, if 48 hours expired outside ordinary court days.
e) Illegal foreigners who were in detention at the time the order was issued would be brought before a court within 48 hours from the date of the order or on such later date as would be determined by a court.
f) In the event of Parliament failing to pass corrective legislation within 24 months, the declaration of invalidity would operate prospectively.
g) The Minister of Home Affairs and the Director-General: Department of Home Affairs would, within 60 days from the date of the order, file on affidavit a report confirming compliance with paragraph 5 (e), at the High Court of South Africa, Gauteng Division, Pretoria.
h) The High Court of South Africa, Gauteng Division, Pretoria would determine any dispute arising from that report.
i) The appeal was dismissed.
Relevance to the Kenyan Situation
Article 29 of the Constitution provides for freedom and security of the person which includes the right not to be deprived of freedom arbitrarily or be detained without trial. Article 49 (1) (f) states that an arrested person has the right to be brought before a court as soon as reasonably possible, but not later than twenty-four hours after being arrested or if the twenty-four hours end outside ordinary court hours, or on a day that is not an ordinary court day, the end of the next court day. Sub-article (1) (g) goes on to provide that at the first court appearance,an arrested person should be charged or informed of the reason for the detention continuing, or be released. Article 51 also provides that a person who is detained, held in custody or imprisoned under the law, retains all the rights and fundamental freedoms in the Bill of Rights, unless a right is clearly incompatible with the fact that the person is detained, held in custody or imprisoned. Such persons are also entitled to an order of habeas corpus under sub-article 2.
The Kenya Citizenship and Immigration Act No. 12 of 2011 provides for matters immigration and in particular section 49 (1) on power of arrest and search of persons provides that within 24 hours when a foreign national is taken into detention, or without delay afterward, they shall be produced before a judicial officer to review the reasons for the continued detention. Subsection (3) provides that at least once during the seven days following the review under subsection (1), and at least once during each thirty day period following each previous review, the detained person shall be produced before a judicial officer to review the reasons for continued detention.
In Republic v CS, In Charge of Internal Security & 3 others Ex-Parte Jean Eleanor Margaritis Otto  eKLR the Applicant was charged with being unlawfully present in Kenya contrary to Section 53(1) (j) of the Kenya Citizenship and Immigration Act No. 12 of 2011. The High Court granted her judicial review orders of certiorari against her criminal charges having found that her rights under article 29 of the Constitution on freedom and security of a person were deprived arbitrarily.
The South African case will be an important precedent to the Kenyan jurisprudence as rights encompassed in the Bill of Rights should apply to everyone indiscriminately more so to foreigners as the country seeks to uphold a just and fair judicial system for all.